Last updated 10 May 2022
In 2018, the Queensland Parliament agreed to a Human Rights Act (Human Rights Act 2019 (Qld)). One of its objectives was ‘… to ensure that public functions are exercised in a way that is compatible with human rights …’ (Explanatory Notes to the Human Rights Bill 2018). ‘Public functions’ include the criminal justice system and processes.
The International Covenant on Political and Civil Rights (ICPCR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) apply equally to children as to adults. Australia is also a signatory to the United Nations Convention on the Rights of the Child (CROC), which confirms these rights for children and contains additional protections because they are children.
Australia is also a signatory to a number of other international documents, which, recognising children’s developmental issues, provide rules and guidance on how to respond to children in breach of the law such as the United Nations:
- Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules)
- Guidelines for the Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines)
- Rules for the Protection of Juveniles Deprived of their Liberty 1990.
The Convention on the Rights of the Child provides that the best interests of the child shall be a primary consideration in all actions concerning children undertaken by the courts of law (Article 3.1). The Beijing Rules provide that the wellbeing of the child is to be the guiding factor in the consideration of their case (Article 17.1(d)).
Use of detention as a last resort for remand or sentence is reiterated in CROC, the Beijing Rules, the Riyadh Guidelines and the Charter of Youth Justice Principles in the Queensland Youth Justice Act 1992 (Qld) (Youth Justice Act) (sch 1, Principle 18). The literature overwhelmingly confirms that detention certainly does not prevent, and may well contribute to, recidivism. One Australian study found that two thirds of young people sentenced to a period in detention are re-convicted within two years (Weatherburn, Vignaendra and McGrath 2009 The specific deterrent effect of custodial penalties on juvenile reoffending, Australian Institute of Criminology).
The treatment of children alleged or found to have broken the law should ‘… reinforce the child’s respect for the human rights and fundamental freedoms of others’. It should also be ‘… consistent with the promotion of the child’s sense of dignity and worth …’ and ‘… take into account the child’s age and the desirability of promoting the child’s reintegration and … a constructive role in society …’ (Article 40.1 CROC).
Sections 29 to 32, 34 and 35 of Queensland’s Human Rights Act set out rights for all people, including children, involved in the criminal justice system. Section 33 relates specifically to children, reflecting provisions in both the ICPCR and CROC:
- An accused child who is detained, or a child detained without charge, must be segregated from all detained adults.
- An accused child must be brought to trial as quickly as possible.
- A child who has been convicted of an offence must be treated in a way that is appropriate for the child’s age.
The Human Rights Act requires that statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.